whether a product ban is implemented. All product bans, for instance, must
conform to due process. The Fifth and Fourteenth Amendments prohibit
government from depriving people of life, liberty, or property without due
process of law (procedural due process) and guarantee that they will not encroach on the rights of citizens (substantive due process). Procedural due
process shields legal processes (e.g., the right to notice, the right to stand
trial) when government action deprives a person of life, liberty, or property.
Thus government may violate procedural due process by failing to provide
affected parties with notice or the opportunity for a hearing before banning
a product. Substantive due process, in contrast, focuses on whether there is
sufficient justification for governmental decisions to dispossess an individual of his or her rights.
101 As a result, government must ground public
health-driven product bans in scientific evidence that sustains negative
health outcomes.

Failing to appropriately justify and rationalize the product ban exposes
regulators to substantive due process challenges because their actions may
be deemed arbitrary.
102 The attempted New York City soda ban in 2013
tested this standard.
103 At the trial level, the ban failed primarily because it
targeted only certain vendors and outlets. The trial judge did not criticize
the perceived weak link between sugary drinks and obesity. Rather, he
opined that the regulation “is arbitrary and capricious because it applies to
some but not all food establishments in the city. . ., and the loopholes inherent in the rule” gut its purpose.
104